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INTRODUCTION
Labour market is not homogenous. It is broadly segmented into unorganised and organised, wage
earners and self-employed, skilled, semi-skilled and unskilled and so on. Every regulation
relating to social security and working conditions has different meaning and implication for
every segment. The life of a worker is also not homogenous, throughout his living, at different
stages of life. The perception, understanding and need of the things change and vary at different
periods of life such as adolescence, youth, and old age. The meaning of social security is not the
same throughout the life of a worker. In the same way, the perception pertaining to decency
undergoes a change during the life cycle of a worker. For him decency has a different meaning at
different levels of age. At the young age, it is something else than what it may be during the old
age. It means the social security and decency is not only significant for a worker but also have a
different meaning at different levels of living during the life of a worker. For any regulation,
which can become a source of employment promotion, it is very important that it should fulfill
its purpose. From this point of view, there is every need to evaluate different legislations/rules/
acts in regard to social security and decency of workmen.
Workmen under various labour legislation are as follows;
1. Industrial Disputes Act, 1947
2. Workmens Compensation Act, 1923
3. Industrial Employment (Standing Orders) Act, 1947
4. Crown Construction Contracts Act
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(i)
who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of
1950), or the Navy Act, 1957 (62 of 1957); or
(ii)
(iii)
(iv)
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The important question is what does it mean to be a workman? The answer lies in the fact that
every employee covered in the definition can avail various benefits under the Act. A workman
can raise an industrial dispute with the employer regarding discharge, dismissal, retrenchment or
termination of his services. Section 25F of the Act provides mandatory conditions for
retrenchment of workers.
However, all those employees who do not fall within the ambit of the definition of a workman
will not be entitled to benefits under the Act. In Purandaran vs. Hindustan Lever Limitedthe
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petitioner adopted the Voluntary Retirement Scheme (VRS) , introduced by the respondent and,
subsequently, left employment. Thereafter, he learned that there was a change of terms in the
VRS under which 15% in excess of what the petitioner got was payable. The petitioner claimed
the payment of the enhanced amount from the respondent and raised an industrial dispute. The
Court held that the petitioner had adopted the VRS, which amounted to his resignation, and, as a
result thereof he is not entitled to claim the status of a workman and so cannot raise any
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industrial dispute. Clearly, the prerequisite for an industrial dispute is that the person raising it
must fulfill the criteria of a workman.
IMPORTANT POINTS
A. The object of Industrial Disputes Act, 1947 is to make provisions for the investigation
and settlement of industrial disputes, and for certain other purposes between employer
and workers. Therefore it is necessary to give an elaborate definition explaining what
sort of persons come under the purview of workman. The approach of Section 2(s) is a
positive one and not a negative one.
B. The word workman means any person employed in any industry etc. It is a very
exhaustive term, including any person, apprentice employed in any industry to do any
manual, skilled, unskilled, technical, operational, clerical or supervisory work for hire or
reward etc.
C. Certain categories of persons viz the persons having managerial or administrative
capacity are excluded from the definition of workman. There is a difference between
supervisory, managerial or administrative capacity.
D. Whether the piece-rated workers are to be treated as workmen?
This is the most important question raised before the Courts on several occasions. In the leading case
Silver Jubilee Tailoring House vs Chief Inspector of Shops and Establishments and Shining
Tailors vs Industrial Tribunal, the Supreme Court gave judgments in favour of piece-rated workers
holding them as workmen within the meaning of Section 2(s) of the Industrial disputes Act, 1947.
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Even in the earlier cases in Great Britain, the employer exercised control over his workers in
extracting the work. This distinction of telling workers what to do and how it is to be done was
based upon the social conditions of an earlier age. It was assumed that the employer was superior
in the technology and was therefore aware of technical methods in manufacturing. Therefore in
the agricultural society and in the earlier stages of Industrial revolution, the owner was regarded
as superior to the workmen in knowledge, skill and experience. This was called as control test.
It reflected a state of society in which the ownership of means of production coincided with the
profession of technical knowledge and the skills were largely acquired by being handed down by
one generation to the next by oral tradition and not by being systematically imparted in
institutions of learning from schools or technical training institutions. The control test postulates
a combination of managerial and technical functions in employer and his workmen.
In the modern context, this division and control test are not useful because today economy
plays an important role in establishing an industry and managing it. A rich person having no
knowledge about an industry to be established, can establish the same with the help of
technocrats. Money plays an important role in the modern economy. An ordinary graduate or a
matriculate can establish a five star hotel by employing experts and people engaged in the
technical field. Today a drastic division has been established between the managers and
technocrats. Control is obviously an important factor. In some cases, it may still be a decisive
factor, however in every case it may not be so. This was decided in the leading case.
Brief Facts: In this case the owner established Silver jubilee tailoring House. He supplied cloth
to the tailors and paid remuneration on a piece rate. He had never controlled them in any manner
apart from supplying the cloth as per the capacity of the tailor and paying money as per the
piece-rate. He provided sewing machines, cloth and other sewing materials to them. He did not
maintain any registers under the labour laws. The Chief Inspector of Shops and Establishments
prosecuted him. The lower courts gave the judgment treating the piece-rated tailors as the
workmen within the meaning of Section 2(s) of the industrial disputes Act, 1947. He appealed
to the Supreme Court. He argued that he had no technical knowledge of tailoring and he had
engaged them on contract basis, that too on piece-rate, and that they were not regular employees,
and also that his was a seasonal business.
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JUDGMENT: The Supreme Court gave judgment against the owner and treated all the piecerated tailors as workmen.
PRINCIPLES: (i) Mathew J. observed: it is in its application to skilled and particularly
professional work that control test in its traditional form has really broken down. It has been said
that in interpreting control as meaning the power to direct how a servant should do his work,
the Court has been applying a concept suited to a past age, but not now.
(ii) The rule laid down in this case has been applied in subsequent cases i.e. Shining Tailors vs
Industrial Tribunal etc.
(iii) The tailors working at one place at piece-rate for several employers are not treated as
workmen.
E. In R.G. Makwana vs Gujarat State Road Transport Corporation (, The High Court
of Gujarat has held that any person who has been dismissed, discharged or retrenched in
connection with or as a consequence of a dispute is also included within the definition of
the workman under Section 2(s). What is important and relevant is the date of reference.
As on that date requisite conditions of the definition of the term workman as per
Section 2(s) have to be satisfied. In this case the workman was a dismissed workman
and his salary on the date of reference was clearly covered by the main definition of the
term workman and did not fall within the accepted category of clause (iv).
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F. Arkal Govind Raj Rao vs Ciba Geigy of India Ltd it was observed that : where an
employee has multifarious duties and a question is raised whether he is a workman or
some other than a workman the Court must find out what are the primary and basic
duties of the person concerned and if he is incidentally asked to do some other work,
which may not be necessarily in tune with basic duties, these additional duties cannot
change the character and status of the person concerned. In other words, dominant
purpose of the employment must first be taken into consideration and gloss of some
additional duties must be rejected while determining the status and character of a person.
Therefore, in determining which of the employees in various categories are covered by
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the definition of a workman one has to see what is the main or substantial work which
he is employed to do.
Factors which determine when an employee will be a workman
(i)
Additionally, the employee must be paid some remuneration irrespective whether the terms of
his employment are express or implied.
(ii)
The contractor is responsible for payment of remuneration to the employees and not the
management. However, under Indian law, the contract workers are legally bound to the
contractor, but if the contractor defaults in providing any benefits that a contract labour is
entitled under the law, the principal employer is liable. The principal employer will be the
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company where the workers work. Contract labourers under the law are eligible to receive, from
the contractor, benefits such as provident fund and employee state insurance.
There is ambiguity whether a contract worker will qualify as a workman. There have been
situations where such workers have come within the ambit of the definition of a workman.
The terms of the contract between the contractor and the Company govern the employment of
the contract labour. The triggers for creation of a potential industrial dispute for contract and
temporary/casual employees may arise when there is: (i) a tendency/frequency to hire workers
who are engaged in the activities that are contrary to any local notification prohibiting
employment of contract labour, (ii) non-compliance with provisions of legislations which require
employers to provide benefits to its employees including contract labour, and (iii) excessive
control/check on the activities of contract labour. The Courts have held that if the principal
employer keeps control on contract labour, including granting them leave or extending any salary
advance, then the contract between the contractor and principal employer is a sham. In Ram
Singh & Others v. U.T. of Chandigarh; both the contractor and contract labours were held to be
direct employees of the principal employer.
(iii)
It is not essential that the employment in the industry should have direct nexus with the main
industrial activity; the employees who are employed in connection with operations incidental to
the main industry will also be treated as workmen. For instance, if workers are employed by a
sugar factory to remove press-mud from the sugar factory, the workers will be considered
workmen, as removing press-mud is an activity which is the part of the sugar factory.
(iv)
Nature of work: Another determinative factor is the nature of duties and functions
enumerated in the definition of workman. This means that in order to become a
workman, an employee must be engaged in mainly seven types of work i.e. manual,
unskilled, skilled, technical, operational, clerical and supervisory work. However,
under modern industrial conditions large numbers of employees are often required to
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do more than one work. In such a scenario, it becomes necessary to determine under
which of the seven classifications the employee will fall in order to determine
whether he qualifies as a workman. The scope of the present discussion is limited to
the people who are engaged in doing technical, supervisory and managerial activities.
(v)
Technical work: Any person who is engaged in doing any technical work which
involves special mental training or scientific or technical knowledge, will fall under
the definition of workman. However, every work of technical nature which involves
technical skill does not necessarily give rise to the relationship of employer and
employee. Technical work requires training or knowledge or expertise of a particular
art or science to which that works pertains. For example, a doctor performing the
duties of examining patients, diagnosing diseases and prescribing medicines is
considered to possess specialized skills required for performing the job. As a result,
he will qualify as a workman doing technical work only when it is established that he
is employed in an industry, and where the condition of an employer-employee
relationship is fulfilled. Doctors rendering professional services to various
establishments or engaged in private practice where no relationship of employment is
created will not be entitled to claim the status of workmen.
In Bombay Dyeing and Manufacturing Co Ltd v RA Bidoo: it was held that a person is said
to be employed in a technical capacity if he possess some special skills. In the present case, the
respondent was employed as a camera operator in the company. He was working in the screenmaking department of textile mills and was responsible for testing new chemicals and graphite
films and, accordingly, advice the management of their suitability. The company terminated the
employment of the respondent without assigning any reason. The respondent raised an industrial
dispute contending that his termination was not justified. The Court considered the nature of his
work and held that the work done by him was not of a technical nature as it did not require
application of any special knowledge which would result in the creation of a work peculiar to the
talent of the respondent. Hence, the petition was dismissed.
Therefore, it is pertinent to note here that there are two guiding factors which determine whether
a technically qualified person is a workman or not. He will become a workman only when it is
established that he is employed in an industry and performing work of a technical nature.
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However, in order to determine whether the nature of duties performed by a workman will fall
under the technical category, the court has to consider the facts and circumstances of each case.
(vi)
In any event, Indian courts have ruled that where an employee has multifarious duties and a
question is raised whether he is a workman or not, the court should consider the primary and
basic duties of the person concerned. The determinative factor is the main duties of the
concerned employee and not some work done incidentally. For instance, where an employee is
mainly engaged in supervisory work and if he is asked incidentally to do some clerical work,
these additional duties cannot change the character and status of the person and he will be
considered as a workman doing supervisory work.
In Management of Sonepat Cooperative Sugar Mills Ltd. vs Ajit Singh, the respondent was
appointed as a legal assistant by the appellant to prepare written statement and notices and draft
legal opinions. He also used to perform some quasi-judicial functions like conducting
departmental enquiries against the workmen employed in the industrial undertaking of the
appellant. While he was employed by the appellant in that capacity, it was decided to abolish the
position. The respondent raised an industrial dispute raising his contention that his termination
was not justified. However, the appellant opposed the respondent's contention and pleaded that
he was not performing any managerial or supervisory duties and, therefore, would not be a
workman. The Supreme Court held that the job performed by the respondent was of "legal
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clerical nature" which involves creativity of mind. Further, merely because the respondent had
not performed any managerial or supervisory duties did not disqualify him as a workman.
Moreover, if the workman is mainly engaged in work which is of manual, clerical or technical
nature, the mere fact that some supervisory or other work is also done by him incidentally or as a
small fraction of his work, will not take him out of the purview of the definition of a workman.
In other words, the dominant purpose of employment must be first taken into consideration and
the gloss of some additional duties must be rejected while determining the status and character of
a person.
(vii)
In Central Bank of India, Lucknow vs. Assistant Labour Commissioner, Kanpur and
others, respondent was a bank manager performing managerial and administrative function as an
executive officer of the branch. On account of his suspension, he raised an industrial dispute
contending that his suspension is illegal. The court held that the role of a branch manager
essentially consists of ensuring business development by continuously educating his customers
along with his staff on various services the bank can offer. Therefore, on account of the nature of
his duties which are purely of managerial and administrative nature like planning and organizing
branch's performance, staff administration and development etc. he cannot come under the
definition of workman. Hence, the petition was dismissed.
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PROTECTED WORKMEN
Who is a protected workman?
Rule 61(1) of Industrial Disputes (Central) Rules, 1957, provides that every registered trade
union connected with an industrial establishment shall communicate to the employer before the
30th April every year, the names and addresses of the officers of the union who are employed in
that establishment who should be recognised as protected workmen. Rule 61(2) makes it
obligatory on the part of employer to recognise such number of workers as provided u/s 33 (4) of
the Industrial Disputes Act, 1947, as protected for a period of 12 months, within fifteen days of
receipt of the proposal from the union.
Where the total number of names received by the employer exceeds the maximum number of
protected workmen, admissible for the establishment, u/s 33(4) of the Act, the employer shall
recognise only such maximum number of workmen as protected.
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Where there are more than one registered trade unions in the establishment, the maximum
number of protected workmen shall be distributed among the unions in such a way that each
union shall have representation as protected workmen in proportion to the membership of the
unions. If the number of protected workmen allotted to a union is less than that proposed by the
union, the union will have to select from the proposed list the names of such persons who should
be recognised as protected workmen and intimate the names to the employer within five days.
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(ii) employed in any such capacity as is specified in Schedule II, whether the contract of
employment was made before or after the passing of this Act and whether such contract is
expressed or implied, oral or in writing; but does not include any person working in the capacity
of a member of the Armed Forces of the Union ; and any reference to a workman who has been
injured shall, where the workman is dead, includes a reference to his dependents or any of them.
IMPORTANT POINTS
A. Section 2(1)(n) of the Workmens Compensation Act, 1923 defines workmen for the
purposes of awarding the compensation to workman or to his dependants. For this
purpose, it differs with the definitions given in other labour and industrial legislations.
B. Driver: A driver working in private or public sector is a workman. Even a substitute
driver working for two days on a lorry is a workman within the meaning of this section.
Example: A is the lorry owner. B is As lorry driver. For the purpose of this Act, B is the
workman of A. This was decided in Oriental fire and General Insurance Co. Ltd Vs.
Union of India.
C. Casual employees appointed for a particular purpose are not workmen within the
meaning of Section 2(1)(n). Daily rated workers are the casual workers. If a worker
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works only one day on daily wages, and dies, the employer is not liable. If a worker is
appointed for six months or more, he is treated as a worker.
In Patel Engineering Co. Ltd vs Commissioner for WC, a workman worked under a
contractor on daily rate. He was paid weekly. He worked for one month. The Andhra
Pradesh High Court held that he was not a casual employee, but a worker within the
meaning of Section 2 (1) (n). A person engaged to whitewash on wages is a workman. A
person engaged to whitewash on
Gurbaksh Singh
E. In Divisional Railway Manager, S.E. Rly vs M. Laxmibai: The Court held that a
railway servant drawing less than 1000 per month iis a workman.
F. In Juthi Devi and others vs. pine Chemical Ltd and another: In this case a watchman
was appointed by a chemical factory. His duty was to watch and ward.
In this case a watchman was appointed by a chemical factory. His duty was to watch and
ward. He was assaulted by the thieves. Due to injuries he died. The dependants claimed
compensation. The management raised objection that the watchman was not a worker, as
he was not concerned with the manufacturing process of the industry. The High Court
gave judgment in favour of the dependants and ordered the management to pay
compensation. The High Court held that the workman was employed in a premise where
manufacturing process intended to be carried on was not necessarily required to be
actually connected with the manufacturing process. A watchman was not a contributor to
the industry and therefore he was a workman.
G. In Champal vs. Daryavbai and others: In this case, A-the house owner had given
construction of a wall on contract to B- a maistry. As per the agreement, B had to
construct the wall and to take contracted amount @ square feet. While B was
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constructing, it was collapsed and he died. The High Court gave judgment that B was a
worker and A was laible to pay compensation to dependants of B.
The Court held that there was a clear distinction between an independent contractor and a
worker. A person agreeing to work personally is a workman. A person agreeing to get work done
by others is an independent contractor. In case of independent contractor, owner is not liable to
pay compensation. In case of a workman, the owner is held liable.
Basis for the calculation of compensation: The basis for calculation of compensation is monthly
wages; In Zubeda Bano v. Maharashtra Road Transport Corporation,
Batta does not amount to wages for computing compensation.
Batta paid to a workman per day to cover special expenses incurred by him due to nature of his
employment does not amount to wages for the purposes of computing compensation; New
India Assurance Co. Ltd., Hyderabad v. Kotam Appa Rao, 1995 LLR 609 (AP).
Conditions for treating a person as workman
From the definition of workman given in section 2 (1) (n) of the Act, it is clear that for not
treating a person as workman, two conditions are required to be proved namely that his
employment is of casual nature and he is not employed for the purpose of employees trade or
business and the onus is on the employer to prove these conditions; Mangala Ben v. Dalip
Motwani,
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Section 2 [(i) wages and workman have the meanings respectively assigned to them in clauses
(rr) and (s) of Section 2 of the Industrial Disputes Act, 1947 (14 of 1947)
Under Crown Construction Contracts Act. workman" means a person who has a contract with
a contractor, or with a subcontractor who has a contract with a contractor, to provide work on a
contract. 1972, c.8, s.1; 1981, c.19, s.1.
Definition of worker under the Factories Act, 1948- Worker" means a person employed,
directly or by or through any agency (including a contractor) with or without the knowledge of
the principal employer, whether for remuneration or not], in any manufacturing process, or in
cleaning any part of the machinery or premises used for a manufacturing, process, or in any other
kind of work incidental to, or connected with, the manufacturing process, or the subject of the
manufacturing process but does not include any member of the armed forces of the Union.
The Apprentice Act , 1961 : Worker means any person who is employed for wages in any
kind of work and gets his wages directly from the employer but shall not include as apprentice
referred to his clause.
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Conclusion
Courts and scholars have been grappling with the question of who is a workmen for centuries.
The addition of a new intermediate category has the potential of making the distinction easier. It
also has the potential of preventing or at least minimizing, the widespread avoidance of
responsibilities by employers, which so far has been authorized by the judiciary. For both
advantages to materialize, the term employee and workmen must be interpreted positively to
achieve the goals behind the regulations in which they are found. These purposes may be best
served if courts and tribunals maintain a distinction between two basic vulnerabilities suffered by
people who work for others. Therefore dependency itself should be used to identify workers
and trigger the application of protective labour laws.
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LIST OF WEBSITES
a. www.indiakanoon.com
b. www.legalpundit.com
c. www.wikipedia.com